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The Banning of the Film ’India’s Daughter’: No leg to stand on - N. Ram / Easiest Option is to ban things - Rajeev Dhavan

9 March 2015

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The Hindu - March 9, 2015

No leg to stand on

by N. Ram

India’s Daughter is a powerful and sensitive documentary that is part of a global campaign against rape, violence against women, and gender inequality. It explores the life and dreams of an extraordinary young woman, brutally ended. The tension between her story and the outrageously reactionary social attitudes expressed on camera gives the documentary its power. The government’s ban has no leg, social, moral, or legal, to stand on.

It takes a special political talent and habit of mind to ban something that you haven’t seen, that the rest of the world will not just see but is set to centre-stage as part of a global campaign against rape, other forms of violence against women, and gender inequality. The grounds cited to justify the government’s decision to ban India’s Daughter, Leslee Udwin’s documentary on the Nirbhaya gang rape and murder case and the responses to it, which NDTV was scheduled to broadcast on International Women’s Day, suggest a pathology of arbitrariness, irrationality, fact-denial, and confusion. To be fair, the vilification of the film, sight unseen, and why and how it was made came not just from the government but also from other political parties, some feminists, and, of course, rival television channels.

The objections

If over-the-top allegations such as “a conspiracy to defame India” can be ignored, the grounds cited to justify the ban narrow down to three. They are that (a) broadcasting or otherwise disseminating India’s Daughter, and especially the interview with Mukesh Singh, the convicted rapist and killer, will threaten public order by “encouraging and inciting violence against women,” instilling fear in them, and leading to “a huge public outcry and serious law and order problem”; (b) providing a platform for a man convicted of rape and murder to “use the media to further his own case” when an appeal is pending in the Supreme Court of India is sub judice; and (c) the “permission conditions” laid down by the Tihar jail administration were “violated” by the documentary film-maker.

Let us take up each objection in turn.

India’s Daughter is a powerful, sensitive, and well-crafted exploration of the life and dreams of Nirbhaya and her progressive and nurturing working class family who sold ancestral land and made other sacrifices to see her through her para-medical education. The central, liberating theme of the documentary, a simple statement that a narrator attributes to Nirbhaya, is “a girl can do anything.” The tension between a life shaped by this unshakeable inner conviction and heart-rendingly cut short and the outrageously reactionary social attitudes, expressed without the slightest inhibition and captured on camera, gives India’s Daughter its power. The central narrators are Nirbhaya’s parents who want her story to be told, real name, provenance, and all. The unprecedented outpourings of solidarity and protest on the streets, led by young women and girls who confront the police with no thought of physical safety and are deterred neither by water cannons nor tear gas shells, offer the documentary a cathartic start. There is no editorialising but the message comes through.

As for motive, the test of any creative work is sincerity. Can there be any doubt after watching India’s Daughter that the film-maker was inspired by the tremendous response on the streets of India, which gave hope to her personally and to rape victims and campaigners against gender inequality and violence against women around the world?

The interviews

What about the interviews with Mukesh Singh and the two defence lawyers? Indian authorities, who assigned guilt by transference to the film for the convict’s lack of remorse and for his “chauvinistic and derogatory view regarding women in general and the victim in particular,” have been acting as though interviews and interactions with convicted criminals were something new to journalism and documentary film-making. Literary journalism has thrived on such forays into the world and mind of those who have committed the most heinous crimes. In Cold Blood by Truman Capote is one of the finest works in the genre and is sometimes called the original non-fiction novel. It is the story of the massacre in 1959 of a farmer, his wife, and two of their children by two hardened criminals, Richard ‘Dick’ Hickock and Perry Smith. The writer, who was given unusual access, did several interviews with both killers after they were convicted and came up with an unforgettable psychological portrait of capital crime. The Executioner’s Song by Norman Mailer, which re-tells in spare, non-judgmental prose the story of a double murderer, Gary Gilmore, is another celebrated work in the same genre, although Mailer took a different route to his material from Capote.

Journalists and film-makers rarely take the straight route to the material they are determined to get. Textbooks on investigative journalism, and the canons of literary non-fiction, make an allowance for the use of deception when it comes to gaining access to otherwise inaccessible material — provided the pursuit is in the public interest.

“Can there be any doubt that the film-maker was inspired by the tremendous response on the streets of India, which gave hope to her personally and to rape victims and campaigners around the world? ”

I have been given access to all the material communications between the documentary film-maker and the authorities and they establish that at no stage did Ms Udwin resort to deception. She made it clear from the start that she would like to gain access to the convicts in the Nirbhaya case. In her first official letter, dated July 22, 2013, co-signed by an Indian director, to Vimla Mehra, Director-General (Prisons), New Delhi, Ms Udwin sought the jail administration’s help with a documentary film “we are committed to making in the public interest” that would go deep into “the issue of gender-based violence against women in India” and help “understand mindsets that indulge in such heinous crimes all over the world.” She requested permission to interview convicts of gender violence in Tihar Jail (after obtaining their consent, of course) “as the basis of a documentary that dares to go beyond the ordinary in understanding the issue from the source of the action.” She got lucky with Mukesh Singh and there can be little doubt that without the interview with him, her documentary would have none of the power it has.

The question whether this interview was sub judice has been answered clearly in a statement issued by the Editors Guild of India opposing the ban. “The Nirbhaya incident,” the Editors Guild has pointed out, “has been an obvious matter of public interest and has been through all the stages of investigation, trial, and confirmation by the High Court, been subject to a widespread public debate and discussion, protests and demonstrations, and enquiry by the Justice Verma Commission that suggested reform of the law. To raise the issue of sub judice now at the stage of final appeal in the Supreme Court and seek to still discussion is absurd. Judges, particularly in the Supreme Court, are by training and temperament immune to the happenings in the public sphere outside the court, and it is an insult to the Supreme Court to suggest that the airing of the convict’s perverted views would tend to interfere with the course of justice.”

Flawless compliance

Finally, did the documentary film-maker violate “permission conditions,” as Home Minister Rajnath Singh has alleged in Parliament? A close reading of the relevant papers establishes that this is one of those rare cases where compliance with the procedures and conditions precedent was flawless every step of the way.

The government has withheld from the public the fact that the original condition laid down, in an official letter, dated July 26, 2013, from the office of the Director General (Prisons) that permission was being given for “releasing the documentary film which is being made for purely social purposes without any commercial interest” was dropped after the film-maker wanted a change in the language. That letter was superseded by another, dated August 20, 2013, from the Superintendent (Jails), Prison Headquarters, Tihar, which laid down the condition that “the complete unedited, raw footage of the shoot in the Tihar Jail premises will be shown to the Delhi Prison Administration to ensure there is no breach of Prison security.”

The subsequent official correspondence establishes that in December 2013, Ms Udwin brought some 13 hours of raw, unedited footage recorded within Tihar Jail for screening before the review committee but after viewing it over two days, December 9 and 10, the committee discovered nothing negative that could lead to a breach of prison security. However, finding the reviewing task too taxing, it requested a shortened version of the footage. The editing work took some time and during this period, with regime change happening in New Delhi, the Prison Administration seems to have got cold feet. Numerous emails and letters from Ms Udwin and her lawyers went unanswered and finally in June 2014, when “cut-down material” running for about 15 minutes, which would be the only footage going into the documentary, was screened before the reviewing committee, some editorial objections were raised that had nothing to do with the conditions laid down.

The Central government needs to realise that its objections to India’s Daughter have no leg, social, moral, or legal, to stand on and that the longer it is in denial about this, the more embarrassing it will get for India’s image in the world, on the gender and free speech questions. The Prime Minister would do well to undo the retrograde ban immediately, failing which he could allow it to lapse when it is challenged in the Supreme Court, as it surely will be.

Daily Mail - 8 March 2015

Banning ’India’s Daughter’ is the easy way out

by Rajeev Dhavan

Ban, Ban, Ban, Ban, Ban! Good grief why? Would the spirit of Nirbhaya - whose memory depicts her as without fear - have asked for this ban.

Her parents are not for the ban, but would not oppose a government ban if imposed. Film intellectuals like Shabana Azmi, Javed Akhtar and Kabir Bedi are for airing the film, if only to expose the perversity of the rapists; and I would add their self-seeking lawyers. Shobha De says it should be compulsory viewing, while Sagarika Ghose says that it is Nirbhaya and not Mukesh who dominate the film.

Government view

On the government’s side Home Minister Rajnath Singh says he was stunned and deeply hurt. Was this a justification for the ban? How fickle. Delhi Police Commissioner, B. S. Bassi was all set to file an FIR.
Would the spirit of Nirbhaya - whose memory depicts her as without fear - have asked for this ban on a BBC documentary?

Would the spirit of Nirbhaya - whose memory depicts her as without fear - have asked for this ban on a BBC documentary?

The Opposition was side-tracked into asking who permitted the film (Rajiv Shankar) and the relief to be given to the victim’s family (Jaya Bachchan).

Recall Haryana’s chief minister recently saying earlier that “if women want freedom... they can just roam around naked”.

Mulayam Singh had exonerated the rapist boys who, alas, “make these mistakes”.

Nishtha Gautam presents the film’s “totemism and “sensationalism”, while many newspaper editorials rightly do not find banning a solution.

Do we want to know more about the biggest social disease? Or simply brush all these issues under the carpet because we claim to be inheritors of a ‘pure’ civilisation?

The Modi government’s ban is as silly as they come. India has no jurisdiction over BBC 4, which has already aired the documentary. Equally pointless, the Delhi High Court is ordering its ban on the film to continue.

Tihar Jail, which permitted filming, sends notices to the BBC and Leslee Udwin for breach of conditions. The reality is that the film is in the public domain. It reached many websites. YouTube proliferated the film. The BBC screamed violation of copyright. Some proliferators withdrew the film, but the proliferation continued.

Streisand effect

A ban followed by proliferation is called the ‘Streisand’ effect, named after the actress who attempted to ban illicit material on her. The more she complained, the more people wanted to see the objectionable material.

The ‘Spycatcher’ absurdity was visible when England’s House of Lords banned a book. In a banner headline, a newspaper called the judges: “You Fools”. And, fools they were, denying people a book that was globally available.

Is there a freedom of speech to interview willing under-trials and convicts? In 1982, the Supreme Court recognised journalist Prabha Dutt’s right to interview death sentence convicts according to the jail manual.

In 1987, Sheela Barse’s right to interview prisoners was accepted by the SC.

In 1999, the Supreme Court permitted India Today reporter Charu Joshi to interview death penalty accused.

In 1980, Justice Krishna Iyer declared that jail does not mean a prisoner or convict loses his basic rights, including free speech.

In 1966, the apex court ordered the publication of a book by a prisoner on atomic sciences. Auto Shankar was convicted to death for six murders, but allowed to publish his biography without censorship by police officers whom it exposed.

The law is clear. Prisoners have the right to express themselves. Journalists have the right to talk to prisoners. Jail manuals are to be reasonably interpreted. The BBC film had all the permissions from the Ministry of Home Affairs.

Does the sub judice rule prohibit films and journalism on an on-going case? The Supreme Court allowed Zee to broadcast on an ongoing case. Tragically Black Friday, a brilliant film, was kept under wraps by the Bombay High Court. The rule does not gag the media. The formula “file-a-case-and-gag-the-media” is unacceptable.

UN Secretary-General Ban Ki-moon found the content of what the rapists said objectionable. What if the film portrays how rapists think? When will India accept that it has an increasing rape culture which has gone viral?

March 2015 has seen some news that should make us cringe. A 17-year-old girl committed suicide after being gang-raped. On the same day, a Dalit was tonsured and paraded in his village because he lit a Holika fire. We do not restrain Sadhvi Balika, who exhorted beating those who praised Pakistan. What do you say to a mob lynching a Nagaland rapist?


We have become cruel and uncivilised people devoid of remorse. Don’t blame Leslee Udwin for what we have become. We have pushed her to a point that she remonstrated that she, too, has been a rape victim. No banning will wipe out what have become.

A few decades ago, the Supreme Court lifted censorship on Tamas, Ore Ore Gramathille, Bandit Queen among others. This is a good message to our society, whose demands for a ban degenerate into a shouting match as a reflex response.

Today, mob demands of social censorship have become virulent. It is not just the state, but society which has become intolerant.

We should remember that free speech is a learning process and censorship and bans have little place in a democratic country, still less when it exposes rape as a social evil.

But rather than face who we are, we resort to a ban. It’s the easiest option.

(The writer is a Supreme Court lawyer)


The above articles from The Hindu and Mail Today are reproduced here for educational and non commercial use